 |
 |
 |
 |
 |
 |
 |
Last page edit 01/16/08
|
|
|
|
|
|
|
Frequently Asked Questions about Divorce in Maryland Overview of divorce, separation and annulment in Maryland
What does the term “Pro Se Litigant” mean? Overview of Divorce, Separation and Annulment in Maryland Divorce is the ending of a marriage ordered by a court. Because marriage is considered a civil contract between the parties under Maryland law, the complete dissolution of marriage is a divorce. In Maryland, you can ask for two types of divorce: absolute and limited. When the court orders an absolute divorce, it means that the divorce is permanent, permits remarriage, and terminates property claims. When the court orders a limited divorce, it means that the divorce is not permanent. You are not permitted to remarry. It does not terminate property claims although the limited divorce may settle these claims. A limited divorce makes temporary decisions about custody, child support, alimony, use and possession of property. It also documents the date of your separation. Some people call this legal separation. A limited divorce is a legal action where a couple’s separation is supervised by the court. It is generally designated for individuals who do not have grounds for absolute divorce, need financial relief and are unable to settle their differences privately. In order to obtain a limited divorce in Maryland, you must meet residency requirements, grounds, and other legally prescribed laws just as you would in a case for absolute divorce. Maryland courts may grant a limited divorce even if you are seeking an absolute divorce. The courts may also decree these divorces permanently or for a limited time only. In addition, Maryland’s limited divorces may be revoked by the courts at any time the parties jointly apply to be discharged. In such cases, the parties would return to the state of being legally married. Common misconception - You are
required to get a limited divorce (sometimes referred to as a legal separation) before you can get an absolute divorce.
Md. Code Ann. Family Law § 7-103
allows a decree of divorce whether there has been a
previous order of limited divorce or not. The laws (statutes written by the legislature) on divorce in Maryland are located in “The Maryland Annotated Code under the Family Law section of the Code in subsection 7”. References to the law in the information in this Library section will look like the following “Md. Code Ann. Family Law § 7-103. Annulment is a relatively rare special action that establishes that your marriage never existed. If a court finds the facts necessary to grant an annulment it is as if you and your spouse were never married. The factors necessary to prove an annulment are difficult to meet and therefore courts are reluctant to grant an annulment and may grant a divorce instead. Grounds for an Absolute Divorce, Limited Divorce or an Annulment - There are three principal players involved in your marriage that will also be involved in your divorce: you, your spouse, and the state. You and your spouse cannot simply agree between yourselves to break up and file a paper stating that.
Among other legal considerations, you have to give the state an acceptable reason why you should be allowed to break up. The reason is known as the ground for your divorce. Over the years, each state has passed its own legislation that governs acceptable grounds for divorce. In Maryland, there are different grounds for a divorce, a “legal separation” or limited divorce and an annulment. Choosing Grounds for an Absolute Divorce Am I Eligible to File for Divorce in Maryland? There are two threshold questions which you must answer before you can consider filing for a divorce in Maryland. #1 Are you a resident of Maryland? If no, does your spouse reside in Maryland? #2 Do any of the grounds that Maryland allows for divorce apply to your situation? If you answered yes to both of these questions, you can file for divorce here in Maryland. Review the rest of this section of the People’s Law Library for legal information and guidance on a divorce in Maryland. What Does the Term “Pro Se Litigant” Mean? The term “pro se” (pronounces “pro say”) is Latin meaning “on your own behalf”. It is often used by the courts and the legal system to describe those who do not employ an attorney to represent them when they go to court. If you represent yourself, you will be a “pro se litigant”. Before considering representing yourself, you may want to visit the Diagnosing Your Own Divorce page and take the alimony and property quizzes. Afterwards you may have a rough idea whether you might want to pursue a claim for alimony and/or property while representing yourself. Why Should I Hire an Attorney? An attorney is a specialist trained to analyze the facts of a case in light of the law. S/he will also have several advantages over you in assessing the likely outcome of your case. S/he will
Before you choose to, or choose not to hire an attorney, you may want to visit the Diagnosing Your Own Divorce page and take the alimony and property quizzes. Afterwards you may have a rough idea whether you might want to pursue a claim for alimony and or property and whether you can do it while representing yourself. If it appears that you may have a claim and you plan to speak to an attorney, gather your records and fill in this checklist that details your income and property. Need help finding a lawyer in Maryland? If I Represent Myself, Will the Judge Help Me Out? The judge has a duty to act as a neutral, impartial decision maker, s/he has the responsibility to guarantee a “fair trial”, primarily through the applying of the “rules” at the request of one of the parties. The U.S. law is based on an adversarial system with one party on one side of an argument and the other party on the other side. Maryland courts say people representing themselves must meet the same requirements as attorneys. Unlike the judges on television, the courts in Maryland are bound by certain rules and will expect you to know and follow these rules. While judges will generally try to be fair and some judges may provide some limited help to you, they are obliged to be fair to the other side as well. It is your responsibility to prepare yourself to handle your own case. The judge does not have a lot of leeway to compensate for any lack of information or skill on the part of one of the parties. When representing yourself, the judge will expect you to know what you are trying to prove (the law and the type of “relief” or solution). There are rules covering how to prepare court papers, how to notify the other side, how to present evidence (and what is acceptable as evidence) as well as how and what you can appeal. In addition, the judge must be asked to apply the rules. This means that you not only must know what the rules are but you must know when to ask a judge to apply the rules. To avoid some of the more common mistakes that people make in court, visit the Avoiding Mistakes page. There you will find information from Court Clerks from 26 circuit courts across Maryland explaining some, easy to avoid, common problems that people face. Can My Spouse’s Attorney Offer Me Any Help? No. Your spouse’s attorney is not a neutral person in the case. S/he represents only your spouse and cannot represent you, give you advice, help you define the legal terms or prepare any of the necessary documents. In fact, the Maryland Rules of Professional Conduct for Attorneys note: “In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands that lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.” Maryland Rules of Professional Conduct, Rule 4.3 “Dealing with Unrepresented Persons.” As one court noted, “Almost invariably, as this case demonstrates, it is unwise for an attorney, even in the best faith, as was the case here, to undertake to represent both a husband and wife or both parties in any other case.” Faller v. Faller, 247 Md. 631, 634 n. 1, 233 A. 2d 807 (1967). Need help finding a lawyer in Maryland? Should I Sign Papers Prepared By My Spouse’s Attorney? Any document that your spouse’s attorney prepares is designed to protect your spouse’s interests, not yours. While you may choose to sign a document, especially in a friendly divorce, you should read it carefully to see if it represents your best solution as well. It is very important that the documents be reviewed by an attorney. Once signed such a document is almost impossible to overturn unless both of you agree. There are two general types of documents that you might be asked to sign and your response will depend on the type of document.
Do you need help finding a lawyer in Maryland? It may be wise to find an attorney who is willing to just review your situation (and the document you are being asked to sign) without charging you to handle your entire case. This is sometimes called an “unbundled” legal service because the attorney is not handling all aspects of your case, but is agreeing to handle just one piece of your case. (S/he is “unbundling” the full attorney representation package to offer just one type of service.) This is NOT an area where your spouse’s attorney can be expected to look out for your interests. As one court noted, “ We feel that when a husband and wife are contemplating a separation agreement, it should be obvious to an attorney that he cannot adequately represent the interests of both parties.” (emphasis in the original) Hale v. Hale, 74 Md. App. 555, 539 A. 2d 247, 254, cert. Denied, 313 Md. 30, 542 A. 2d 857 (1988).
It is likely to be unethical for your spouse’s attorney to prepare those documents for you to sign and file as your own. The Maryland State Bar Association’s Ethics Committee has said that it is not permitted for the attorney for one spouse to prepare an answer for the unrepresented spouse on the other side. They said that this would undermine the “adversary system of justice” and mislead the court into thinking that the unrepresented person had prepared his/her own answer. Source – Maryland State Bar Association Formal Opinion 77-1 (Docket 77-35) November 30, 1976 as confirmed by review published in the January – February 1990, Volume XXIII, Number 1. Why Might I Choose to File for a “No Fault” Divorce? “No fault” divorces, known in Maryland as a neutral and voluntary separation, are easier to prove and are less likely to antagonize your spouse. While claiming a ground (such as adultery) may be personally satisfying it is likely to (1) take much more effort (and time) to prove and (2) encourage your spouse to dispute the grounds. Disputing the grounds for divorce will not only add substantial time to the divorce, but it will also make it much more likely that you will need to have an attorney. You may even be unsuccessful in getting the divorce. Need help finding a lawyer in Maryland? None of this is to suggest that you cannot get a divorce on a “fault” ground. If, however, you qualify for a “no fault” divorce, it may be the better choice, especially if you plan to handle your own divorce. Keep in mind that a “no fault” divorce which requires your spouse’s agreement, may also create a problem if your spouse changes his/her mind. In that case, you may want to claim more than one ground for divorce as a backup. Can (or Should) I Claim More than One Ground for Divorce? Yes, the question is why you might choose to do so. Claiming an “alternate” ground for divorce is a good idea if you are not sure your spouse will consent to a “no fault” divorce based on a mutual and voluntary 12-month separation. You may choose another ground that applies as well and use it as a backup if your spouse changes his/her mind. Should I Start My Divorce Now? This is an intensely personal decision. Many people seek the advice of friends, family members, clergy and therapists. No website can give you guidance on if, or when, you should consider divorce. You may want to read a few candid, non-legal observations from an attorney with many years of divorce experience. However, there are a few law – related considerations you should factor into your decision. Your Residency in Maryland Future Eligibility for Social Security Benefits If your marriage has lasted almost 10 years, you may want to consider the following when deciding when to file for divorce. Social Security Retirement and Survivors Benefits and Social Security Disability Benefits have similar rules regarding possible benefits for divorced spouses and surviving divorced spouses. Under both programs, a marriage of at least 10 years before your ex-spouse’s retirement, disability onset or death may entitle you to receive benefits on your ex-spouse’s social security account and earnings record. An important limitation is the fact that the benefits based on your former spouse’s work record are only payable to you if the benefits based on your own work record are less. You can receive only the higher of the two benefits, not both benefits. In addition there is a family benefit cap. This means that your benefit may be reduced if a high number of people are eligible for benefits on a single worker’s record. In order to be eligible as a divorced spouse when your ex-spouse retires* or becomes disabled, you must:
*Note – Even if your spouse has not actually applied for retirement benefits, you can apply for benefits if your spouse is at least 62 and you meet the conditions above. **** Note as a remarried divorced spouse, you may still be eligible for benefits on the ex-spouse’s work record if the new marriage ended in divorce, annulment or death before you apply for the benefits on your first spouse’s record. In order to be eligible as a surviving divorced spouse after the death of your ex-spouse, you must:
As noted, there is no guarantee that you will become eligible for benefits based on your ex – spouse’s record. However, you may want to coordinate your filing date with your 10th anniversary if your income is low. If your income is low, your spouse has paid into social security, you do not expect to earn a great deal in the future and your marriage has lasted almost 10 years. FYI – The length of your marriage is calculated from the date of your marriage to the date of the final divorce decree. (The date you file for divorce is not relevant). How Long Before I will be Divorced? There are several factors that will determine the length of time for your divorce: The grounds you claim for the divorce. (There are different time requirements for different grounds.) Inclusion of other issues in custody, visitation, alimony, child support and/or property. Aside from the factors noted above, if everything moves along, you can count on an average time of 6 months after you file for divorce for cases that go before a judge. It will also depend on how crowded the judge’s calendar is and sometimes by county. Inclusion of Other Issues - You may also include related family law issues in your divorce complaint. If there is an agreement between you and your spouse on these issues, the drafting of these agreements may add some modest additional time. Dividing certain types of pension plans may add substantial additional time. See the questions on pensions and Qualified Domestic Relations Order (QDRO) – especially the question on the impact of plan type on the complexity of creating a QDRO. If you and your spouse do not agree on any or all of these matters, it can add substantial time to the divorce if the issues are included in the divorce complaint. Practical Tips from a Marital Attorney - This advice is from M. Sue Talia, a California attorney with over 20 years of experience who has written a candid, funny, and very useful book called, “How to Avoid the Divorce from Hell.” “I can’t stand living in limbo. It’s either her or me. Choose right now!” I seem to spend a great deal of my time dissuading people who don’t really want a divorce from giving this ultimatum. Never, NEVER give your spouse an ultimatum that you are not prepared to have him accept. It only gives the fence-sitting spouse the permission he has been looking for all along. He can then shift the guilt and blame you for forcing the issue. Believe me, I know how hard it is to live in limbo, not knowing whether your marriage is ever going to be the same again, or even be again. Waiting for the other shoe to drop is torture. You feel utterly powerless and have no control over your own future. You are probably saying, ‘I don’t care what happens; I can’t stand this uncertainty.’ That’s not a reason to force a divorce you don’t want. I have frequently told clients that although it has been years since I read my Baltimore catechism, my recollection is that as bad as limbo is, hell is worse. Before you give an ultimatum, be sure you’re prepared to accept either answer.” "I want to file for divorce to show him that I'm really serious this time." "I also seem to spend a lot of time talking people who don't want divorces out of filing papers just to make a statement. In my opinion, the only reason to file for divorce is that you affirmatively want a divorce, not because you want to send a message, not because you can't stand being in limbo anymore, and certainly not because your friends are badgering you into it ('How can you put up with that? I never would.'). If divorce is inevitable, you have the rest of your life to do it. However, once that paper is filed, a public record is created for all the world to see, a die has been cast. If anyone tells you that it is easy to dismiss an existing divorce as it is to refrain from filing it, they are wrong. More often than not, the divorce develops a life of its own. People then get polarized into saving face, etc. This is not to say that couples can't reconcile after they have filed for divorce, but it is much harder than simply putting things on hold until you’re each sure of your feelings." |
|||||
Source: Maryland State Law Library (MSLL) Last legal review 08/16/08
Is this legal advice? This site offers legal information, not legal advice. We make every effort to ensure the accuracy of the information and to clearly explain your options. However we do not provide legal advice - the application of the law to your individual circumstances. For legal advice, you should consult an attorney. See our section on Finding Legal Help. About this website. The Maryland State Law Library, a court-related agency of the Maryland Judiciary, sponsors this site. The website was developed (1999-2007) as part of an access to justice initiative by the Maryland Legal Assistance Network (MLAN) in collaboration with a number of legal services providers serving low and moderate income Marylanders. In the absence of file-specific attribution or copyright, the Maryland State Law Library may hold the copyright to parts of this website. You are free to copy the information for your own use or for other non-commercial purposes with the following language “Source: Maryland's People’s Law Library – www.peoples-law.org. © Maryland State Law Library, 2007.”
Need help with the legal terms?
